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Nutley Policemen's Benevolent Association Local #33, and Michael v. Township of Nutley

April 1, 2011

NUTLEY POLICEMEN'S BENEVOLENT ASSOCIATION LOCAL #33, AND MICHAEL O'HALLORAN, INDIVIDUALLY AND ON BEHALF OF OTHER SIMILARLY SITUATED INDIVIDUAL NUTLEY POLICE OFFICERS, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF NUTLEY, NUTLEY POLICE DEPARTMENT, COMMISSIONER ALPHONSE PETRACCO AND JOHN HOLLAND, CHIEF OF POLICE, APPROVED FOR PUBLICATION DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7376-08.

The opinion of the court was delivered by: Grall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 8, 2010

Before Judges Rodriguez, Grall and LeWinn.

The opinion of the court was delivered by GRALL, J.A.D.

The Fair Labor Standards Act (FLSA), 29 U.S.C.S. §§ 201-219, requires a public employer to allow an employee awarded compensatory time off in lieu of overtime pay "to use such time within a reasonable period after making [a] request if the use of the compensatory time does not unduly disrupt the operations of the public agency." 29 U.S.C.S. § 207(o)(5). This appeal requires us to consider whether an employer who denies permission to use compensatory time on the date requested but permits use within the "reasonable period" defined in its agreement with its employees must also show that a grant would "unduly disrupt" operations. 29 C.F.R. § 553.25(c)(2), (d). We conclude that the employer need not do so and affirm the order granting summary judgment to the employer.

Plaintiffs Nutley PBA Local #33 and its president Michael O'Halloran, on behalf of himself and others similarly situated, commenced this action against defendants Township of Nutley, its police department and the Department's commissioner and chief.*fn1

Plaintiffs sought a declaration that the Department's policy for granting use of compensatory time violates the FLSA. They also sought restraints against the policy and liquidated damages available under 29 U.S.C.S. § 216(b) for O'Halloran and other aggrieved officers.

The material facts are not in dispute. The Nutley PBA Local #33 is the collective bargaining unit for the patrol officers and sergeants employed by the Department. The Department has a policy that allows an officer entitled to overtime pay to elect compensatory time in lieu of the overtime pay when the officer reports the overtime hours. The policy prohibits an officer from carrying more than 150 hours of compensatory time but otherwise leaves to the officer the choice between overtime pay and compensatory time.

Most pertinent here, the policy sets the conditions under which an officer may use compensatory time. Although the conditions are not expressly stated in the parties' collective bargaining agreement (CBA) and memorandum of agreement (MOU),*fn2 plaintiffs' attorney, in the trial court, "candidly" acknowledged that the policy conforms with the parties' mutual understanding of those documents.*fn3

Use of compensatory time, as well as vacation and personal days, is linked to the minimum staffing level on the officer's shift. If a grant of a request for time off will leave the shift above or at the minimum level, then the request is approved. In contrast, if approval of the request would leave staff on the shift below the minimum level during the hours that the officer requests, the request is denied.

Minimum staffing levels are addressed in the CBA and MOU. The CBA requires the Chief to give the PBA periodic notice of "the minimum manpower allocation established for uniformed patrol officers assigned to patrol cars (exclusive of fixed posts) on each shift." In the MOU, the PBA acknowledges that this section entitles them to notice, but nothing more. The current minimum staffing levels have been in effect since December 2003. There are, each shift, "a minimum of five patrol officers . . . for patrol duties, exclusive of fixed posts" and one supervisory sergeant, whose responsibilities may be assumed by a lieutenant in the event of the sergeant's absence. The CBA expressly ties approval of vacation time to minimum staffing levels, authorizing denial of a request to use a vacation day that will "cause the shift to fall below the minimum" level.

The CBA further requires the Department to honor requests for time off that it has granted. Once vacation is approved, the Department will not rescind it to address "manpower shortages that may later occur." Similarly, the Department must assume responsibility for a "shortage of manpower" that arises after it has approved use of a personal day. As the Chief explained during his deposition, the Department views its prior approval of time off as a commitment to the officer. Consequently, if a shortage arises due to a combination of prior approvals of time off and unexpected absences, the Department maintains minimum staffing levels by calling in an officer not scheduled for duty and paying overtime if necessary. The Chief admitted this procedure does not unduly disrupt Department operations. There is no dispute that pursuant to this policy, compensatory time, personal leave and unscheduled vacation are denied, approved and honored in the same way.*fn4

The Department staffs each shift to accommodate some approved time off. There are twelve patrol officers and three sergeants assigned to each of the three patrol shifts, and they work four days followed by two days off. Thus, on any given day there are eight patrol officers assigned to each shift, which is three patrol officers more than the minimum staffing level. Pursuant to the CBA, no more than two patrol officers may take vacation at the same time, leaving at least one spot for compensatory and personal time off on those days when two officers on the same shift take vacation.

In all, Department officers used 1,736.75 hours of compensatory time in 2007 and 2,035.25 hours in 2008. The record also includes evidence of two denials of requests for use of compensatory time. Both requests were on May 9, 2009 to use ...


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